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february 2018

 

The Medical Board’s Disciplinary Power – A General Overview and Best Practices

 

Each year, the Medical Board of California conducts nearly 1,500 formal investigations into physician conduct. While most do not result in the physician losing his or her medical license, even the consequences of a lower level of discipline can negatively affect a physician’s hospital privileges, managed care contracts and future employment prospects.

 

This article provides a general overview of the Medical Board enforcement powers and briefly describes how an investigation typically proceeds. Ultimately, any physician under Medical Board investigation should immediately retain a knowledgeable health care attorney to help him or her reach the optimal outcome.

 

The Medical Board’s Investigation and Enforcement Powers

The Medical Board is a consumer protection agency with broad investigatory and enforcement powers. It is empowered to take action against a physician for “unprofessional conduct,” broadly defined to include patient care issues as well as non-clinical conduct, including false advertising, certain criminal convictions and even operating under a fictitious name without a fictitious name permit. With respect to patient care, discipline is typically warranted where the physician’s conduct constituted “incompetence, gross negligence, or repeated negligent acts.”1  Generally speaking, this means that the Medical Board must show either a pattern of negligent conduct, or a single act that rose to the level of gross negligence, defined as “lack[ing] even scant care or [representing] an extreme departure from the ordinary standard of conduct.”2

 

To determine whether to open an investigation, the Medical Board relies on reports from third-parties about potential physician misconduct. In addition to complaints from the general public, California law imposes certain reporting requirements on physicians, employers and medical facilities. For example, any malpractice settlement or judgment involving payment of $30,000 or more must be reported to the Medical Board, as must any employment termination or suspension of privileges based on a “medical disciplinary cause or reason” (often referred to as an “805 Report” due to the applicable section of the law).

 

During its 2016-2017 fiscal year, the Medical Board received 9,516 reports, the vast majority of which were voluntary reports from the general public.3 Of the total 9,516 reports received, the Medical Board opened 1,516 formal investigations, only a small fraction of which resulted in a physician losing his or her license. Nevertheless, given the potential downside, any investigation should be taken extremely seriously.

 

How a Medical Board Investigation Typically Proceeds

Upon launching an investigation into physician conduct, one of the Medical Board’s investigators typically requests medical records from the physician under investigation. The investigator may also attempt to discuss the matter with the physician and/or schedule an in-person interview. Please be aware that the investigator may be working directly with a prosecutor in the Attorney General’s office who may attend the initial meeting. It is extremely important that a physician who receives notice of being investigated immediately obtain legal representation. If, prior to engaging a lawyer, a physician finds him or herself on the phone with a Medical Board investigator, it is perfectly appropriate to politely end the conversation while indicating an intent to confer with legal counsel.

 

The average time for a Medical Board investigation to remain open now exceeds one year. While a physician’s instinct might be quickly to convince the investigator to close the matter, it is more realistic to assume the investigation may remain open for a long period. Rather than attempting to plead his or her case as quickly as possible, it is generally wiser for the physician to take the necessary time to remember the relevant facts and then carefully communicate them to the investigator. This helps ensures an accurate investigatory record that will be most favorable to the physician. After reviewing evidence and conducting any interviews, the Medical Board may decide to escalate its investigation by bringing a disciplinary action, which can vary from public letters of reprimand, rescission of licensure or even referral to criminal authorities. Given the potentially grave personal and professional consequences of even minor forms of discipline, physicians have extensive procedural due process rights before most forms of discipline are finalized. Physicians should avail themselves of these rights to the fullest extent possible.

 

Conclusion

Most investigations do not lead to serious discipline. Nevertheless, it is extremely important that physicians effectively articulate their position to the Medical Board and preserve their legal rights. The best way to do this is by engaging an attorney to assist one through the process of an investigation.

 

As always, this article does not reflect a complete list of legal issues that may arise, nor does it constitute legal advice.

 

 

 

1. [Cal. Bus. & Prof. Code § 2234]
2. Yellen v. Bd. of Med. Quality Assurance, 174 Cal. App. 3d 1040, 1058 (Ct. App. 1985).
3. 2016-2017 Annual Report of the Medical Board

 

 

 

About the Author

Scott Kessenick practices in all areas of Kessenick Gamma & Free, LLP specialization, a San Francisco firm providing legal representation to physicians, physician groups, and other health care professionals. He may be reached at skessenick@kgf-lawfirm.com

 

 

Disclaimer

The articles provided in Practice Management News are general. They do not constitute legal, practice management or coding advice in any particular factual situation or create at attorney-client relationship. Consult your attorney or other professional for advice in your particular situation.